STATE OF NEW JERSEY VS. JUAN M. DELORBE (13-03-0690, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 23, 2017
• Docket: A-3680-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3680-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN M. DELORBE,

Defendant-Appellant. _______________________________________

Submitted June 8, 2017 – Decided June 23, 2017

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-03-0690.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Kerry J. Salkin, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Juan Delorbe appeals from an order denying his

petition for post-conviction relief (PCR) without an evidentiary

hearing. Pursuant to the Court's holding in State v. Parker, 212 N.J. 269 (2012), we remand this matter with the direction

the PCR court permit the parties to engage in oral argument.

In 2013, defendant pled guilty to second-degree

distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(2). He

was sentenced to a five-year term of imprisonment. In 2015,

defendant filed a PCR petition and brief, followed by counsel

filing a supplemental brief. Defendant's principal arguments

were plea counsel failed to advise him of the deportation

consequences of pleading guilty, investigate the case, and

utilize an interpreter to communicate with him. Defendant also

argued counsel's ineffectiveness improperly induced him to plead

guilty and, thus, he should be permitted to withdraw his plea.

On February 12, 2016, the PCR court denied defendant's

petition. Although defendant requested oral argument, the court

decided the matter on the papers. In its written opinion, the

court did not explain why it denied defendant's request for oral

argument.

On appeal, defendant raises the following points for our

consideration:

POINT I – THIS MATTER MUST BE REMANDED FOR ORAL ARGUMENT.

POINT II – IN THE ALTERNATIVE, MR. DELORBE IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE

2 A-3680-15T2 ASSISTANCE OF COUNSEL AND THAT HE SHOULD BE ALLOWED TO WITHDRAW HIS PLEA.

Under the circumstances, we need only address the first

argument. Defendant argues the PCR court erred when it rejected

his petition without affording his attorney the right to present

oral argument. We agree. In Parker, the Court held:

[W]hen the trial judge . . . reach[es] the determination that the arguments presented in the papers do not warrant oral argument, the judge should provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary. A general reference to the issues not being particularly complex is not helpful to a reviewing court when a defendant later appeals on the basis that the denial of oral argument was an abuse of the trial judge's discretion.

[Parker, supra, 212 N.J. at 282-83.]

The Court has consistently enforced its holding in Parker

whenever a PCR court has failed to provide its "reasons for not

providing oral argument on [an] initial petition for post-

conviction relief." State v. Daniels, 225 N.J. 338 (2016); see

also State v. Scott, 225 N.J. 337 (2016); State v. Mitchell, 217

N.J. 300 (2014). Further, recent remand orders issued by the

Court, signal a strong preference for allowing oral argument of

PCR applications.

3 A-3680-15T2 Accordingly, pursuant to the Court's holding in Parker, we

vacate the February 12, 2016 order denying defendant PCR, and

remand this matter for the purpose of permitting the parties to

present oral argument to the PCR court. We do not retain

jurisdiction.

Remanded for further proceedings consistent with this

opinion.

4 A-3680-15T2